Somerville v Nufarm Australia Ltd

[2002] VSC 520

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6978 of 2002

DELORES SOMERVILLE	Plaintiff
v
NUFARM AUSTRALIA LTD	Defendant

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JUDGE:	SMITH  J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 2002
DATE OF JUDGMENT:	14 October 2002
CASE MAY BE CITED AS:	Somerville v Nufarm Aust. Ltd.
MEDIUM NEUTRAL CITATION:	[2002] VSC 520

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CAVEAT – Removal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Riordan	Riordan & Partners
For the Defendant	Mr A. Nolan	Arnold Bloch Leibler

HIS HONOUR:

1. I am satisfied that I should approach this matter on the basis that it is an interlocutory application, the defendant caveator having foreshadowed that a writ would be issued and that any order made would be conditional on that happening.

1. Turning to the issues, there seem to me to be several issues to be tried which are debatable on the evidence before me, but this application can be determined by considering one issue, a critical issue, and that is whether there is a serious question to be tried about the knowledge or constructive knowledge of the plaintiff, when receiving the moneys which she knew came from Crown Casino cheques, of the alleged fraud or alleged breach of fiduciary duty of her former husband and their alleged link to those moneys that she received.

1. I have come to the conclusion that the evidence is insufficient to establish whether there is a serious question to be tried as to those matters.  There is no evidence of actual knowledge.  As to constructive knowledge, I proceed on the basis argued by the defendant that one has to consider the five categories of constructive knowledge spelt out in Koorootang v. ANZ Banking Group[1]. 

   [1][1998] 3 V.R. 16 at 85.

1. In considering the issue of constructive knowledge, one has to put oneself in the shoes of the person and consider the issue in light of the information available to that person at the time, and I think one has to be careful to avoid both naivety and cynicism in the situation.  On the evidence before me, it would be reasonable to conclude that she knew the money came from winnings at Crown Casino.  Also, the amounts were substantial, but, notwithstanding the Casino's odds, people can win substantial amounts and can do so legitimately using funds legitimately obtained.  There is no evidence that she had any reason at that time to question her former husband's honesty in his working life, or the source of funds used for gambling.  At the time, on the evidence, she would have believed he was in employment in a well-paid job and was a respected employee in that job.  In addition, I note that they were separated at the time, and accordingly she would not have had the opportunity to have any close knowledge of his life and any changes that may have occurred to that or his financial position.  She was also unlikely in those circumstances to have any knowledge of changes in behaviour that might have alerted somebody to his being under stress or in difficulty. 

1. As a result, I am not persuaded that there is a serious question to be tried as to the plaintiff's knowledge or constructive knowledge in relation to those funds.

1. As to the funds allegedly received by Kirajaha Pty Ltd, there is no evidence in my view sufficient to raise the issue as to her having knowledge or constructive knowledge of the funds or the circumstances of their receipt by that company.

1. Accordingly, in my view, the application for removal of the caveat should succeed.

(Discussion ensued.)

HIS HONOUR:  I order:

1.That caveat No. AB001559J be removed pursuant to s.90(3) Transfer of Land Act.

2.Direct the Registrar of Titles pursuant to s.103(1) Transfer of Land Act to make such recording in the register as is necessary to give effect to this order.

3.        Order that the defendant pay the applicant's costs of the proceeding.

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